4994064.1

IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

PROBATE DIVISION

ARTHUR P. DUECK, et al.,

Plaintiffs,

vs.

THE CLIFTON CLUB COMPANY,

Defendant.

) CASE NO. 2012ADV179424)) JUDGE ANTHONY J. RUSSO)) PLAINTIFFS' BRIEF IN OPPOSITION ) TO DEFENDANT'S MOTION TO ) DISMISS)) (Oral Hearing Requested)

I. INTRODUCTION AND SUMMARY OF ARGUMENT

This case is about The Clifton Club Company's attempts to effectively strip Clifton Park

homeowners of their right of private access and enjoyment of Clifton Beach, essentially

converting private beach property into quasi-public property. The dispute in this case is over the

interpretation of a deed of trust granting beneficiaries the "sole use and benefit of' certain

property in the Clifton Park Allotment, including access to and enjoyment of Clifton Beach. The

language of the deed of trust at issue is unambiguous and undisputed. Thus, the simple issue

presented here is whether non-beneficiaries under a trust have the same rights to use certain

property as do beneficiaries, where the trust specifically and exclusively grants those rights only

to beneficiaries.

Plaintiffs, Arthur P. Dueck, Todd Gilmore, Nancy Binder and William R. Keller

("Plaintiffs") brought this action seeking a declaration from the Court stating that members of

Defendant The Clifton Club Company ("Defendant" or the "Club") have no legal right to use

property under a deed of trust, including Clifton Beach, because Club members are not

beneficiaries under that deed of trust. Plaintiffs filed a straightforward six-page, one count

Complaint asking the Court to resolve this issue. Rather than answer the Complaint and deal

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with the simple issue presented, the Club chose to file a sixteen- page motion to dismiss and

conspicuously dodge the merits of the dispute.

In a feeble attempt to unnecessarily complicate the issue and avoid resolving the dispute,

the Club raises multiple procedural arguments that misconstrue the Complaint and the relief

sought by Plaintiffs. The Club argues that Plaintiffs lack standing because (1) they are not

parties to the Club's deed that granted the Club four sublots in Clifton Park, (2) they allegedly

have no compensable injury, and (3) there allegedly is no justiciable controversy requiring speedy

relief. See Defendant's Mtn. at pp. 5-7.1 Here, the Club's deed is not at issue; Plaintiffs seek

interpretation of the Clifton Park Trust, not the deed. Because Plaintiffs are beneficiaries under

the Clifton Park Trust, they have standing. Further, Plaintiffs have sufficiently pled a

compensable injury and controversy requiring speedy relief. Alternatively, the Club argues that

the action is barred because Plaintiffs have not joined the "titled-owners of Clifton Beach, the

Park Trustees, and their fellow Clifton Park lot owners". See id. at p. 2. None of the individuals

to which the Club refers are necessary parties to this action. Thus, dismissal is not warranted

under Civ.R. 12(B)(7), Civ.R. 19, or R.C. 2721.12.2

II. STATEMENT OF FACTS

Plaintiffs are sublot owners of real property located within the allotment of Clifton Park

in the City of Lakewood. Plaintiffs and other Clifton Park sublot owners who also own

1"Defendant's Mtn." refers to the "Brief in Support of Motion to Dismiss of The Clifton ClubCompany."2If the Court determines that there are individuals other than Plaintiffs and the Club that are necessary parties to this action, dismissal still is unwarranted. Rather, the appropriate remedy is to permit Plaintiffs to add those parties. See State ex. Rei. Bush v. Spurlock, 42 Ohio St.3d 77,81, 537 N.E.2d 641 (1989) (rejecting outright dismissal; "Ohio courts have eschewed the harsh result of dismissing an action because an indispensable party was not joined, electing instead to order that the party be joined"). Likewise, if the Court finds that Plaintiffs have not sufficiently pled they have standing, Plaintiffs request the Court grant them leave to amend their Complaint.

2

residences in Clifton Park are beneficiaries in common under a Deed of Trust dated March 25,

1912 (the "Clifton Park Trust").3 It is undisputed that under the Clifton Park Trust, the Clifton

Park Land & Improvement Company ("CPLIC") conveyed to five trustees ("Clifton Park

Trustees") real property located in Clifton Park, including a beach property in the northwest

comer of the Clifton Park Allotment (referred to as "Clifton Beach") to hold ''for the sole use

and benefit of all the owners of sub lots, or parts of lots, in the Clifton Park Allotment ..."

See Clifton Park Trust (emphasis added); Compl. at ¶ 9; Defendant's Mtn. at p. 1. The Clifton

Park Trust provides that the "Trustees shall hold title to and preserve all the land deeded to them

for the common use of all the lot owners in the Clifton Park allotment and their successors in

title, and members of their households." See Clifton Park Trust; Compl. at ¶ 10. Further, under

the Clifton Park Trust, no part of the property held for the benefit of persons owning sublots

"shall be sold, conveyed or dedicated to public use without the unanimous consent of all the lot

owners in said allotment." See Clifton Park Trust; Compl. at ¶11.

Defendant was incorporated in 1902 to operate as a social club in Clifton Park. On July

1, 1912, CPLIC conveyed four sublots in Clifton Park to the Club (the "Club Deed").4 See

Compl. at ¶ 5. The Club Deed contains the same covenants and restrictions as the deeds to the

other sublots, including provisions not to use the premises for any business purpose whatsoever

or for any other purpose other than a private residence or social club. See Club Deed; Compl. at

¶ 6. Membership in the Club was "not confined to residents of Clifton Park[;]" rather, "a large

number belonging thereto and patronizing the same are not residents." Wallace v. Clifton Park

Land Co., 92 Ohio St. 349, *10, 110 N.E. 940 (1915); Defendant's Mtn. at p. 1.

3 A copy of the Clifton Park Trust is attached to the Complaint as Exhibit A.4 A copy of the Club Deed is attached to the Complaint as Exhibit B.

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A. Residential-Use And Other Restrictive Covenants Imposed Upon Sublots In The Clifton Park Allotment.

All of the properties of Clifton Park are part of an early unique planned community and

share the same deed restrictions that were put in place for the benefit of all the eventual lot

owners to insure that the peaceful park-like community would remain intact for residents to enjoy.

From the time CPLIC first established the Clifton Park Allotment in 1899, and continuing to the

present time, sublots in the Allotment (except the four sublots where the Club is situated), have

been burdened with restrictions that, among other things, limit the property to single-family

residential use. Wallace, 92 Ohio St. at 349,*10.5 The Club's "deed contained substantially the

same restrictions as in all other deeds, save and excepting that the lots should not be used for any

other purpose than that of private residence or social club." Id. Indeed, CPLIC conditioned the

sale of its sublots upon the purchaser's accepting restrictions designed to maintain the residential

scheme of the Clifton Park Allotment. The Clifton Trust property, including Clifton Beach, was

set aside with a "general and uniform plan of restricting the allotment to resident purposes [that]

might contribute to a readier sale of the lots" and "to guarantee to the purchasers a quiet

residence locality". Id. at 359.

B. Clifton Beach Access Is An Informal Courtesy That Has Been Extended To The Club's Members In The Past.

Over the years, the Club's members have been allowed access to Clifton Beach only as a

courtesy extended by Clifton Park sublot owners and the Clifton Park Trustees. The informal

5 In March, 1912, when CPLIC conveyed ownership of Clifton Beach and other Clifton Park property to the Clifton Part Trustees under the Clifton Park Trust, the Club was leasing its property from CPLIC. Accordingly, when CPLIC conveyed four sublots to the Club under the Club Deed in July, 1912, Clifton Beach and other Clifton Park property had already been committed to the "sole use and benefit" of sublot owners whose deeds contained the restrictive "covenants and agreements" limiting use of their property to single-family residences.

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practice of allowing Club members to access Clifton Beach first came about after the Club's

original facility was razed by a fire in January 1942. In the aftermath of the fire, the Club was

struggling financially. Club members were allowed to use the beach house as a temporary

meeting location and allowed access to Clifton Beach, informally, as an act of generosity by

homeowners and the Clifton Park Trustees to help the Club to remain viable. The fact that the

Club's members were extended that courtesy in the past does not mean they are entitled to

continue to use Clifton Beach property held in trust "for the sole use and benefit of all the owners

of sub lots, or parts of lots, in the Clifton Park allotment ..." See Clifton Park Trust; Compl. at ¶

9; Defendant's Mtn. at p. 1.

C. The Dispute Over Access To Clifton Beach.

In recent years, the Club and its members have abused the courtesy of access to Clifton

Beach previously extended by Clifton Park sublot owners and the Clifton Park Trustees. Use of

Clifton Beach by Club members and their guests has increased exponentially. In fact, today

there are approximately 230 Club members, who do not own sublots or residences in Clifton

Park. See Compl. at ¶ 14. Because these Club members do not own sublots or residences in

Clifton Park, they are not beneficiaries under the Clifton Park Trust. Accordingly, these Club

members do not have any legal right to use property granted under the Clifton Park Trust,

including Clifton Beach. The Club however, has taken the position that its members have rights

to use Clifton Beach that are equal to the rights granted to Plaintiffs and other sublot owners as

Clifton Park Trust beneficiaries. This is the dispute.

Clifton Park residential sublot owners have been driven off of Clifton Beach by droves of

non-resident Club members, their families and guests who gain access through memberships sold

by the Club. The Club's use, and abuse, of Clifton Beach has also greatly increased the

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operating costs of maintaining the property. For example, trash cans overflowed onto the

sidewalks increasing cleanup costs. The cost of retaining an additional security guard was

recently incurred after homeowners complained the present staff was not capable of controlling

crowds of unruly Club members and their guests.

Enjoyment of Clifton Beach by the real, and only, beneficiaries of the Clifton Park Trust

has been seriously compromised. Plaintiffs are among the many homeowners who want their

beach property to be returned to the neighborhood gathering place it once was, and rightfully

should be. Utilization of Clifton Beach by the 230 Club members ballooned as the Club has

shifted their marketing from a social club to a club with private beach access. Clifton Beach is

simply too small to accommodate the resident beneficiaries of the Clifton Park Trust and the

large number of Club members using Clifton Beach.

III. LAW AND ARGUMENT

A. Standard For Relief Under Civil Rule 12( B )(6).

In considering a Civ.R. 12(B)(6) motion to dismiss, the Court must (1) accept as true all

material allegations in the Complaint, (2) construe all reasonable inferences in Plaintiffs' favor,

and (3) construe the Complaint in the light most favorable to Plaintiffs. Moore v. City of

Middletown, 2012-0hio-3897, ¶ 4; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532

N.E.2d 753 (1988). "Moreover, the motion to dismiss is viewed with disfavor and should rarely

be granted." Slife v. Kundtz Prop., Inc., 40 Ohio App.2d. 179, 182, 318 N.E.2d 557 (8th Dist.

1974). The Club's motion is rife with irrelevant argument but sparse on supporting facts and

legal authority. Under the deferential standard of review afforded to Plaintiffs, the motion to

dismiss should be denied.

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B. The Motion To Dismiss Should Be Denied Because Plaintiffs Have Standing.

1. As Beneficiaries In Common Under The Clifton Park Trust, Plaintiffs Have Standing To Seek Declaratory Relief Interpreting That Trust.

Plaintiffs have standing to seek declaratory relief interpreting the Clifton Park Trust

because Plaintiffs are beneficiaries in common under the Clifton Park Trust. Ohio Revised Code

2721.03 permits any person interested under a deed of trust to seek a declaratory judgment

interpreting the deed:

[A]ny person interested under a deed, will, written contract, or other writing constituting a contract ... may have determined any question of construction or validity arising under the instrument, ... [or] contract ... and obtain a declaration of rights, status, or other legal relations under it. (Emphasis added).

Further, "R.C. 2721.05 explicitly provides a right of action for a trust beneficiary seeking

a declaration concerning the interpretation of a trust provision." Arnott v. Arnott, 190 Ohio

App.3d 493, 2010-0hio-5392, 942 N.E.2d 1124, ¶ 30 (4th Dist). R.C. 2721.05 permits

declaratory judgment actions related to questions arising in the "administration of a trust":

Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, ... may have a declaration of rights or legal relations in respect thereto in any of the following cases:

(A) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;

(B) To direct the executors, administrators, trustees, or other fiduciaries to do or abstain from doing any particular act in their fiduciary capacity;

(C) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. (Emphasis added).

Under the Clifton Park Trust, CPLIC conveyed to the Clifton Park Trustees real property

located in Clifton Park, including Clifton Beach, to hold "for the sole use and benefit of all the

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owners of sub lots, or parts of lots, in the Clifton Park allotment ..." See Clifton Park Trust

Compl. at ¶ 9; Defendant's Mtn. at p. 1. Plaintiffs are owners of sublots in the Clifton Park

Allotment. Compl. at ¶ 1. These facts are undisputed. Plaintiffs are beneficiaries in common

under the Clifton Park Trust. Indeed, as owners of sublots in the Clifton Park Allotment,

Plaintiffs are "person[s] interested under [the Clifton Park Trust.]" R.C. 2721.03. As

beneficiaries in common of the Clifton Park Trust, Plaintiffs are also "interested" persons under

R.C. 2721.05 and can properly seek declaratory relief to "determine any question arising in the

administration" of the Clifton Park Trust. R.C. 2721.05. Plaintiffs seek declaratory relief

interpreting the Clifton Park Trust. Compl. at p. 5. Specifically, Plaintiffs seek a judgment

declaring that Club members, who are not owners of sublots in Clifton Park, are not beneficiaries

under the Clifton Park Trust, and therefore have no legal right to use the Trust property,

including Clifton Beach. Id. It is axiomatic that as beneficiaries of the Clifton Park Trust,

Plaintiffs have standing to seek declaratory relief interpreting the Clifton Park Trust.

Further, Plaintiffs have standing to seek declaratory relief through various restrictive

covenants that benefit their property.6 "An action for a declaratory judgment is appropriate to

determine an actual controversy regarding the validity of restrictive covenants or other

provisions contained in a deed, as well as their enforceability, and construction or effect." 26

Buchwalter, Dvorske, Kennel, Corpus Juris Secundum, 77 (2012); 35 Farrell, Ohio

Jurisprudence, Third Edition, 33 (3d Ed.2012); Slife, 40 Ohio App.2d at 179 (reversing dismissal

6 Indeed, the Supreme Court of Ohio determined that homeowners in the Clifton Park Allotment have the right to enforce restrictions imposed upon lots within the allotment that are included in the deeds from the original grantors. Wallace, 92 Ohio St. at 359 (dispute involved homeowners of Clifton Park and developer CPLIC; Court found "purchasers and present owners of any of these lots have the right to enforce the restrictions imposed upon these lots in the deeds from the original proprietors").

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of declaratory judgment action to determine the validity of restrictions on the use of land in a

deed). "Any person having an interest under a writing constituting a contract, such as a

restrictive covenant, may seek declaratory relief concerning any question of construction arising

under the instrument." 26 Buchwalter, Dvorske, Kennel, Corpus Juris Secundum, 77 (2012).

Numerous courts have held that any owner of property in a general scheme of

development, such as Plaintiffs who own property in the Clifton Park Allotment, may bring a

declaratory judgment action to enforce restrictive covenants benefitting their land. See Meisse v.

Family Recreation Club, 2nd Dist. No. 97-CA-54, 1998 Ohio App. LEXIS 619 (Feb. 20, 1998)

(subdivision landowners had standing to enforce restrictive covenants in declaratory judg1nent

action); Jubb v. Letterle, 185 W.Va. 239,242,406 S.E.2d 465 (1991) (right of owner of each lot

to enforce residential use restrictive covenant against any other owner of lot in subdivision is a

"substantial and valuable right"); Turner v. Brocato, 206 Md. 336, 111 A.2d 855 (1955)

(ordering declaratory relief in suit by owners of lots in development subject to restrictions

against business use for a declaration that defendants' lot was part of the development and

therefore similarly restricted, although conveyed by the developer and by his grantee to

defendants without restrictions). Here, in addition to being beneficiaries in common under the

Clifton Park Trust, Plaintiffs have standing to seek declaratory relief based upon restrictive

covenants in their respective homeowner deeds.

2. The Club Misconstrues The Complaint As Seeking Reformation Of The Club Deed.

By misconstruing the Complaint as seeking to reform the Club Deed, the Club diverts

attention from the real issue. Defendant's Mtn. at p. 5 ("Plaintiffs impermissibly seek to reform

the terms of the CPLIC-Clifton Club Deed"). The Club's assertions that Plaintiffs are attempting

to "reform" or "void" portions of the Club Deed are patently false. Plaintiffs do not claim to be

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parties to or in privity with parties to the Club Deed. That Plaintiffs are not parties to the Club

Deed is irrelevant, because Plaintiffs do not seek reformation of the Club Deed. Instead,

Plaintiffs seek to enforce restrictive covenants contained in their own residential deeds-in

tandem with their rights as beneficiaries under the Clifton Park Trust. Contrary to the Club's

claim, this is a case "where a lot owner subject to deed restrictions sues to enforce like

restrictions imposed upon other lots by a common grantor." Defendant's Mtn. at p. 6 fn. 2

(internal quotation omitted). The Club's argument that Plaintiffs lack standing because they are

not parties to the Club Deed is futile.

3. There Is A Real And Justiciable Controversy Requiring Speedy Relief.

To be entitled to declaratory relief, a plaintiff must demonstrate that "a real controversy

between adverse parties exists which is justiciable in character, and that speedy relief is

necessary to the preservation of rights which may be otherwise impaired or lost." Herrick

v. Kosydar, 44 Ohio St.2d 128, 130, 339 N.E.2d 626 (1975) (affirming denial of motion to

dismiss); see 35 Farrell, Ohio Jurisprudence, Third Edition, 7 (3d Ed.2012). "A real, justiciable

controversy is a genuine dispute between parties having adverse legal interests of sufficient

immediacy and reality to warrant the issuance of a declaratory judgment." Reinbolt v. Nat!. Fire

Ins. Co. of Hartford, 158 Ohio App.3d 453, 2004-0hio-4845, 816 N.E.2d 1083, ¶ 13 (6th Dist.)

(Internal quotation and citation omitted). "Essentially, courts have the power to resolve present

disputes and controversies, but do not have authority to issue advisory opinions to prevent future

disputes." Jd. Even where a controversy is based on "future events" (e.g. tax liability

"dependent upon whether the IRS conducts an audit and rules unfavorably"), the Eighth District

Court of Appeals has held that the "controversy is not so speculative as to deny declaratory

relief." See Halley v. Ohio Co., 107 Ohio App.3d 518, 524, 669 N.E.2d 70 (8th Dist. 1995).

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Accordingly, a court may dismiss a declaratory judgment action "only when: (1) no real

controversy or justiciable issue exists between the parties, or (2) the declaratory judgment will

not terminate the uncertainty or controversy." See e.g., Matthews v. D 'Amore, 1Oth Dist. No.

05AP-1318, 2006-0hio-5745, 2006 Ohio App. LEXIS 5704, ¶ 53 (plaintiffs alleged they owned

membership units in an entity and that defendants did not own or acquire any membership

interest in the entity; because the court found "a justiciable controversy exists between the parties

and that declaratory judgment will terminate the controversy" and affirmed the denial of

defendant's motion to dismiss).7

Here, there is a serious, actual and present controversy over the interpretation of the

Clifton Park Trust with respect to the right to use Clifton Beach. Declaratory relief is necessary

to preserve Plaintiffs' and other sublot owners' property rights. This is not a situation involving

a hypothetical, speculative or future dispute. Plaintiffs' rights under the Clifton Park Trust are

currently being impaired. Speedy relief is needed to preserve Plaintiffs' rights under the Clifton

Park Trust and prevent further impairment or loss of these rights. Thus, declaratory judgment by

the Court clarifying that Club members have no legal right to use Clifton Beach because they are

not beneficiaries under the Clifton Park Trust, will terminate the present controversy.

7 The Club only cites Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 586 N.E.2d 80 (1992) as support for its assertion that this case does not present a controversy requiring "speedy relief." Defendant's Mtn. at p. 7. But Fairview is distinguishable and does not apply here. The Fairview Court applied the principle that "absent a constitutional challenge, declaratory relief is unnecessary to the preservation of a plaintiffs statutory right when the Ohio legislature has provided a quasi-judicial administrative appeal of administrative decisions[.]" Id. at 150. In doing so, the Court held that "[s]ince there was no constitutional claims, speedy relief in the form of a declaratory judgment was not required to protect [plaintiffs] statutory rights." !d. Here, Plaintiffs are not seeking to protect statutory rights under an administrative statute. Fairview is irrelevant to the issue before this Court.

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4. Plaintiffs Suffer A "Distinct And Palpable" Injury.

The Club further seeks to avoid the merits of the case by arguing the Plaintiffs have no

injury. Contrary to the Club's assertion, Plaintiffs have sufficiently alleged an injury. See

Compl. at ¶¶ 14-16. As stated above, the Club's use, and abuse, of Clifton Beach has harmed

and interfered with Plaintiffs' and other sublot owners' exclusive right to use and enjoy Clifton

Beach. As a result of the Club's expanding membership, the operating costs of maintaining the

property have increased. Clifton Beach is over-populated. Plaintiffs' and other sublot owners'

exclusive right to use Clifton Beach is severely limited due to the Club's increasing membership.

Plaintiffs' and other sublot owners exclusive right to use Clifton Beach is severely limited due to

the Club's membership and increasing use of the beach.

Further, the Club takes the position that all Club members have unlimited access to

Clifton Beach. This would allow the Club to sell unlimited beach memberships making the

beach a public property. In reference to the beach area, the Clifton Park Trust states: "No part of

said land shall be sold, conveyed or dedicated to public use without the unanimous consent of all

lot owners in said allotment." The introduction of approximately 230 members to the Club,

without future limitation, has never been voted upon by the sublot owners. Yet, the Club alleges

their members' rights are equal to the rights of resident sublot owners of Clifton Park. Here,

Plaintiffs have suffered and continue to suffer as a result of the Club and its members' use and

abuse of Clifton Beach. Plaintiffs' and other sublot owners' sole and exclusive property rights in

Clifton Beach have and continue to be diluted and prejudiced on a daily basis. The Club's

usurpation and unlawful interference with Plaintiffs' and other sublot owners' exclusive right to

use and enjoy Clifton Beach is an eminent, "distinct and palpable" injury, properly presented for

a declaratory judgment in Plaintiffs' favor.

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The Club's reliance on Aarti Hospitality, LLC. v. Grove City, 486 F.Supp.2d 696,

(S.D.Ohio 2007) is misplaced and unavailing. In Aarti, a group of corporate entities doing

business as hotels and lodging establishments in and around Grove City, sought a declaratory

judgment that the city's amendment to an ordinance was void. Id. at 697. The ordinance

expanded the boundaries of a community reinvestment area, which allowed defendant corporation

to enjoy tax abatements related to the construction of a new hotel and a new restaurant. Id.

Plaintiffs asserted that they were at a "competitive disadvantage" because they were unable to

take advantage of the abatement unless they undertook remodeling or constructed new

improvements on their properties. Id. The court found that plaintiffs' alleged injury was

"speculation" based on a "hypothetical scenario." Id. at 703. Because the "mere allegation of

increased competition did not constitute the adverse effect on personal pecuniary, or property

rights needed to confer sufficient standing[,]" the court held that plaintiffs lacked standing. Id. at

702. In contrast, here, Plaintiffs' injury is not based on speculation or a hypothetical scenario.

Rather, Plaintiffs' exclusive rights to use Clifton Beach under the Clifton Park Trust are

currently being adversely affected. This dispute is not about a future competitive business

advantage; it is about the present impairment of Plaintiffs' property rights. Therefore, dismissal

is not warranted under Civ.R. 12(B)(6) and Plaintiffs' claim should be decided on its merits.

C. The Motion To Dismiss Should Be Denied Because Plaintiffs And The Club Are The Only Necessary Parties To This Action.

The Club argues, in the alternative, that this action is barred because Plaintiffs have not

joined the "titled-owners of Clifton Beach, the Park Trustees, and their fellow Clifton Park lot

owners[.]" Defendant's Mtn. at p. 2. Civil Rule 19 regarding joinder of parties needed for just

adjudication states, in part:

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A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leaveany of the persons already parties subject to a substantial risk of incurring double,multiple, or otherwise inconsistent obligations by reason of his claimed interest, or (3) he has an interest relating to the subject of the action as an assignor, assignee, subroger, or subrogee. (Emphasis added).

Here, neither the Clifton Park Trustees, nor other Clifton Park sublot owners are

indispensible parties needed for just adjudication because a declaratory judgment will either (1)

enhance their position if Plaintiffs are successful or (2) leave them in their present position

maintaining status quo. There is no danger that disposition of this action—without Clifton Park

Trustees and other Clifton Park sublot owners joined as parties—will "as a practical matter

impair or impede [their] ability to protect" any interest granted to them under the Clifton Park

Trust. Civ.R. 19.8 Unlike the cases cited in the Club's Motion, Plaintiffs are not seeking to alter

the Clifton Park Trust in any way that would potentially damage any absent beneficiary's interest

in the Clifton Park Trust. Moreover, the Trustees have no interest that needs to be protected.

The Clifton Park Trustees have an obligation to administer the Clifton Park Trust in accordance

with its terms. If there is a dispute among beneficiaries of a trust as to the terms of a trust, the

trustees cannot resolve that dispute. If a trustee picks sides, it risks breaching its fiduciary duty.

Rather, a trustee should stand aside and allow the Court to determine the rights of the Plaintiffs

and the Club and abide by the Court's ruling. Accordingly, the Clifton Park Trustees and other

Clifton Park sublot owners are not required to be parties to this action.9

8 If Plaintiffs are successful in this action, the only individuals that could be adversely affected are the approximately 230 Club members. It is ironic that the Club does not suggest that those members are interested, necessary and indispensible parties to this action.9 See Wesson v. Crain, 165 F.2d 6, 9 (8th Cir. 1948) (refusing to force absent beneficiaries to join plaintiff beneficiaries' suit to remove a trustee); Rippey v. Denver US. Natl. Bank, 260 F.Supp.

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None of the cases the Club cites require that the Clifton Park Trustees or other Clifton

Park sublot owners join this action. The Club's reliance on Congress Lake Club v. Witte, 5th

Dist. No. 2005CA0037, 2006-0hio-59, 2006 Ohio App. LEXIS 34, is misplaced. The Witte

court found that plaintiff’s son—to whom plaintiff had transferred the property at issue—was a

necessary party because by finding that the defendant was entitled to possession of the property,

the trial court divested the plaintiff’s son of property in which he claimed an interest without

giving him a chance to protect his interest. Here, there is no concern that other Clifton Park

sublot owners' right to use Clifton Beach (or any right of the Clifton Park Trustees under the

Clifton Park Trust) will be divested by the declaratory relief sought. Their exclusive right to use

Clifton Beach can only be confirmed by a declaratory judgment in Plaintiffs’ favor.

Similarly, Ceria v. Hi!roc Condominium Unitowners Assn., 8th Dist. No. 83309, 2004-

Ohio-1254, 2004 Ohio App. LEXIS 1114, is easily distinguishable. There, the court found that

unit owners that were not parties to the action could be adversely affected by the declaratory

judgment sought by the plaintiffs who were also unit owners. Id. at 9, 12. Because the court

determined that those unit owners' interests did not align with the plaintiffs and thus would not

be protected, the court held those unit owners should be joined. Id. Here, on the other hand, all

Clifton Park sublot owners' rights are protected. Under no scenario can the Clifton Park

704, 711 (D. Colo. 1966) (holding that absent beneficiaries were not necessary parties to a suit in which plaintiff beneficiaries sought relief that would "increase the corpus of the trust," because "the absent beneficiaries stand to gain if the named plaintiffs succeed"); Sredniawa v.Sredniawa, 8th Dist. No. 86607, 2006-0hio-1597, 2006 Ohio App. LEXIS 1499 (trust beneficiaries were not necessary parties to a declaratory judgment action brought by the beneficiaries' mother, as a co-trustee, against the beneficiaries' father, who was the other co trustee); Godfrey v. Kamin, 194 F.R.D. 627 (N.D. 1112000) (contingent trust beneficiaries were not required to join income beneficiary when seeking relief in connection with multiple allegations of wrongdoing which included fraudulent misrepresentations made by trustees to plaintiffs).

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Trustees' and other Clifton Park sublet owners' rights under the Clifton Park Trust be adversely

affected by the declaratory relief Plaintiffs request. 10 Dismissal is not warranted under Civ.R.

12(B)(7), Civ.R. 19, orR.C. 2721.12.11

Finally, the Club argues that there will be nothing "conclusive" about the resolution of

this case. Defendant's Mtn. at p. 14. Contrary to the Club's contention, resolution of the

controversy between Plaintiffs and the Club will conclusively establish the rights to use Clifton

Beach that are granted under the Clifton Park Trust, and to whom those rights are granted.

Plaintiffs seek a declaratory judgment from the Court declaring that Club members have no legal

right to use Clifton Beach, because that right was granted exclusively to beneficiaries under the

Clifton Park Trust. Such a declaration, or any declaration clarifying the language of the Clifton

Park Trust with respect to the right to use Clifton Beach, will be conclusive and resolve this case.

IV. CONCLUSION

For the foregoing reasons, this Court should deny the Club's Motion to Dismiss and

allow this case to be adjudicated on the merits.

10 Indeed, in Bates v. Rupert, Clifton Park Trustee, et al., Cuyahoga C.P. No. CV-84-078814 (Feb. 4, 1985), where a resident of Clifton Park sued the Clifton Park Trustees, none of the resident owners of the Clifton Park Allotment or Club officers or members were added as interested and necessary parties and the case proceeded to summary judgment. See also Beach Cliff Bd. of Trustees v. John Ferchil, 8th Dist. Nos. CA-02-81327, CA-02-81326 (May 20, 2002) (large number of resident beneficiaries of the trust at issue were not added to the action as interested and necessary parties).11 If the Court determines that there are indispensable parties other than Plaintiffs and the Club, the appropriate remedy is to order those parties be joined to this action. See fn. 2 supra.

14994064.1

Denni . Rose (0039416) drrose@hahnlaw.com Dipali Parikh (0082805) dparikh@hahnlaw.comHAHN LOESER & PARKS LLP200 Public Square, Suite 2800Cleveland, Ohio 44114-2301Phone: (216) 621-0150Fax: (216) 241-2824

Attorneys for Plaintiffs

14994064.1

CERTIFICATE OF SERVICE

A copy of the foregoing Plaintiffs' Brief in Opposition to Defendant's Motion to Dismiss

was served via electronic mail and regular U.S. Mail on September 14, 2012, upon the following:

Thomas W. Bakerthomas.baker@tuckerellis.comSusan L. Racey susan.racey@tuckerellis.com Tucker Ellis LLP925 Euclid Ave., Suite 1150Cleveland, Ohio 44115-1414

Joseph P. Gibbons jgibbons@ssrl.comSchneider, Smeltz, Ranney & LaFond PLL1111 Superior Ave., Suite 1000Cleveland, Ohio 44114-2568

Attorneys for Defendant